Date: 20040818
Docket: IMM-6517-03
Citation: 2004 FC 1144
Toronto, Ontario, August 18th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ASHOK KUMAR SHARMA
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and
subsequently written for clarification and precision)
[1] In 1984, the Respondent sponsored for permanent residence his then-fiancée, Kanchan Sharma. At this time, he signed an undertaking in which he agreed to financially support her for 10 years. The couple were married shortly after Ms. Sharma's arrival in Canada.
[2] In 1986, the couple separated and were divorced on July 20th, 2000.
[3] On August 30th, 2001, the Respondent applied to sponsor his current spouse, Sapna Sharma. Citizenship and Immigration Canada informed him that Kanchan Sharma had received social assistance benefits from 1990-1995. As he had not repaid these amounts, it was found that he was ineligible to sponsor his current spouse.
[4] The Respondent appealed this decision. In Reasons dated July 30th, 2003, the Immigration Appeal Division found that changes to the sponsorship scheme contained in section 132 of the new Immigration and Refugee Protection Regulations, S.O.R./2002-227 ("Regulations") meant that he could only be held responsible for social assistance benefits which accrued in the 3 year period after Ms. Sharma was landed in Canada. As she had not received benefits until 1992, which was outside of the three year period, it found that the Respondent had not breached his undertaking in a manner which made him ineligible to sponsor his current wife.
[5] The Immigration Appeal Division did not refer to nor seems to of been cognizant of the provisions of s.351(3) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 which provides:
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(3) For greater certainty, the duration of an undertaking referred to in section 118 of the former Act that was given to the Minister before the day on which this section comes into force is not affected by these Regulations.
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(3) Il est entendu que le présent règlement est sans effet sur la durée de l'engagement visé à l'article 118 de l'ancienne loi qui a été pris auprès du ministre avant l'entrée en vigueur du présent article.
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[6] Both sides agree that these provisions apply in this case and that consequently the duration of the undertaking stays at 10 years.
[7] Accordingly, this application will be allowed and the matter referred back to the Immigration Appeal Division for reconsideration.
ORDER
THIS COURT ORDERS that the decision of the Immigration Appeal Division of July 30th, 2003 is set aside and the matter is referred back to the Division for reconsideration.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6517-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ASHOK KUMAR SHARMA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 18, 2004
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: AUGUST 18, 2004
APPEARANCES:
Mr. Ian Hicks
FOR THE APPLICANT
Mr. Mukesh Bhardwaj
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE APPLICANT
Mr. Mukesh Bhardwaj
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040818
Docket: IMM-6517-03
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ASHOK KUMAR SHARMA
Respondent
REASONS FOR ORDER AND ORDER
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